Author: Kanak Kumari, Symbiosis law school, Nagpur
To the Point
The landmark judgement of the Supreme Court of India `Arnesh Kumar v. State of Bihar & Anr. (2014) is one of the most significant legal judgments meant to stop illegal use of the arresting authority by the police, especially under Section 498A of the Indian Penal Code (IPC) and under Dowry Prohibition Act, since such cases are based on matrimonial disputes. This landmark case has inarguably set the stage that an individual liberty is a cherished value and thus arresting should not be a rote step that is punitive but a reasonable step based on the need of investigation and crime deterrence. It has radically transformed the criminal procedure environment by requiring extreme due process and judicial review prior to the deprivation of a person of his/her liberty.
Facts of the case
This is one of the cases where dowry harassment is brought about. The husband of respondent no. 2 (Swetha Kiran) who was the wife of the appellant. They got married on 1st July 2007.
Things that were being demanded by her mother-in-law and father-in-law, the wife alleged, included a Maruti car, an A/C, a TV set and 8 lakh rupees. When the husband heard about this, he threatened that he will get another woman to marry in case the demands are met. The wife also claimed that she was sent away by the husband since she did not give the requested Dowry. The appellant was accused of the Section 498 A of IPC and Section 4 of Dowry Prohibition Act 1961.
After being informed about the charges levelled against him, the appellant had applied to get an anticipatory bail (Section 438 of CrPC, now, it is 482 of BNSS) which was denied by the Sessions Judge of Bihar and by the High Court of Patna.
The appellant appealed to the Supreme Court by criminal appeal against the refuse of granting him anticipatory bail.
Abstract
The Arnesh Kumar vs. State of Bihar judgment thus can be viewed as a historical step taken by the Supreme Court of India to act against the misuse of arrest power especially section 498A IPC. The Court in recognition of the legal and practical consequences of unjustified arrests provided the necessary guidelines to be followed by the police officers and Magistrates in regard to crimes that concerned maximum seven years imprisonment. These guidelines require a rational cause of arrest, a notice of arrest in some situations, monitoring of detention by the courts, an overarching structural change that shifts arrest as a normative process to the exercise of last resort, hence protecting the liberty of a person and creating a fairer criminal justice system.
Use of legal jargon
Warrant
It is a legal document given by a judge or official.
It allows the police to search a person, or bring them to the court.
The warrant has to be in writing and should carry a seal of the court with the signature of a judge.
In Sections 70-81 CrPC (now 72-83 BNSS there are rules).
A warrant case refers to a criminal offense punishable by a death penalty, life imprisonment or more than 2 years.
section 41 of CrPC
The non cognizable offense shall not be arrestable without warrant (Section 2 (1)(o) BNSS): The less-serious crimes, the police require the permission of the court to investigate.
As per sections 41(1), the police can also issue a warrant
In case of the person being noted, he is obliged to appear. Failure to turn up may result in warrant-less arrest.
In the event that the person shows up as said, they cannot be arrested without warrant unless there are certain reasons documented.
According to, Supreme Court in Arnesh Kumar, said the Section 41 was an abuse and stipulated new guidelines as to how the Section was to be used.
Section 41A of CrPC
Police have authority to give a summon to appear in case doing does not warrant arrest.
Provided that there should be a reasonable cause to believe that such cognizable offense has occurred.
When it is detected, the individual has to present himself/herself.
Appearing does not mean that one cannot be arrested but only with court orders and particular reasons.
Article 21 of the Indian constitution (Right to life and personal liberty)
The liberty entails freedom (freedom of speech, occupation, expression and body).
Article 21 was expanded by courts in terms of dignity, Privacy, safe environment and livelihood.
Arnesh Kumar case: The court held that unwarranted arrests and refusal to grant pre-arrest bail was infringement to article 21 (right to life and liberty).
The proof
The main questions before Supreme Court were as follows:
The need to be detained by the police officers based on crimes punishable by imprisonment not exceeding seven years.
The most prevalent abusive use of the Section 498 A of IPC that was actually made to save women but many times became a weapon of torture against spouses and their families.
Observations of Supreme Court:
Critical remarks in the above regard were made in the Court of Chandramauli Kumar Prasad and Pinaki Chandra Ghose who formed the two-member bench of the Honourable Court.
They have observed a phenomenal rise in matrimonial malefices and the bitter truth is that 498A that was supposed to be a shield against cruelty was misused by aggrieved women and it became an irony as stated by them; has become a blunt sword with innocent people, even including innocent aged parents and young children, locked up without solid evidence.
The Court pointed at the frightening statistics: in spite of the high number of cases made under S. 498A being registered and charge-sheeted, the conviction rate was pathetically very low which was pointing to a huge proportion of bogus or hyperbolic complaints. This indicated that random arrests were carried out due only to a complaint and there was no reasonable preliminary examination of a prima facie case.
The judgment was aware that arrest is associated with memories of humiliating, loss of dignity and stigmatisation and it was conscious of the harmful effects of unnecessary arrest on the society like overcrowding of jails and overwhelm the justice system.
The Guidelines of Arnesh Kumar
It was at the Supreme Court that mandatory guidelines on police arrests especially on the arrest not being automatic in case of certain offences were formed.
State governments will now be required to give certain directives to the police forces, which will train police personnel to remain extremely careful and discreet in the use of their authority to arrest individuals. In particular in cases which fall under Section 498A IPC, arrests should only be made when it can be made out that the same are really necessary and within the framework specified in Section 41 of the code of criminal procedure (cr-pc).
The police officers should be simply provided with a comprehensive checklist containing the list of different criteria mentioned in Section 41 CrPC that should be carefully observed and documented before making an arrest.
The police officer must also hand over this filled checklist with a clear written explanation on why it was necessary to arrest an individual when the man is being presented before a magistrate to be remanded.
The magistrates in turn are mandated to look carefully into the submitted checklist, the reasons stated in support of an arrest, and any other related handlings and then decide. The analysis should neither be a perfunctory exercise but it must be a wise move entirely.
Moreover, given that the police may opt not to arrest a suspect, the decision together with its justification has to be reported to the magistrate within a period of two weeks, upon the commencement of the case.
It is a compelled requirement as in Section 41A of the CrPC that a person accused of a crime must be given a notice prior to any action being taken against him or her.
Failure to follow the obligation of issuing this notice may have dire consequences to the police such as disciplinary measures upon the police department and even contempt of court cases endorsed by the concerned High Court.
In like manner, a magistrate may likewise be guilty of contempt of the court in case he does not fully evaluate the reasons of arresting or not convincingly approve the causes that lead to authorization of detention. Also, sanctioning of a detention without documentation of reasonable facts will expose the magistrate to departmental proceeding against him by the High Court.
It is imperative to mention that the Court originally said that these guidelines are applicable to all crimes that are not cognizable and whose maximum punishment is seven years imprisonment. More importantly, it appears that the original wording here had a misconception since the judgment had majorly dwelt on offences that can be punished with up to seven years, which in most cases would include cognizable offences such as 498A and in no way had provided exceptions to cases of domestic violence and dowry deaths. Another judgment (such as Satender Kumar Antil) was resolute in establishing its general application to any such offence.
Lastly, the Court issued the instruction that such order should be published to the Directors General of Police in every state and union territory, as well as the Registrars in all High Courts, so that that order is widely aware and implemented.
Case Laws
Munawar v State of M.P case (2021)
This case involves a bail application of interim bail of an accused. The convicted was a stand-up comedian who had been put behind the bars because he offended religious sensibilities. Through the Arnesh Kumar case, the Apex Court took resort and issued an interim order to interim bail him. It was of the view that the arrest was unlawful since the provisions indicated in the Arnesh Kumar case were not adhered to.
Kahkashan Kausar and Ors. vs. State of Bihar case (2022)
In this case, the domestic violence dispute came under analysis by the Supreme Court. The court has considered the Arnesh Kumar case, among others to provide evidence of misapplication in the use of Section 4 allowed under the Dowry Prohibition Act, 1961 and the Domestic Violence Act, 2005. According to the court, jurists were also charged with the responsibility of breaking the fabric of the society i.e., the family shall not be broken.
Conclusion
The Arnesh Kumar versus the State of Bihar is the landmark case which has revolutionised the method of arrests and has greatly enhanced the constitutional liberty of person and it has enshrined the conditions to prevent arrest.
The required rules of conduct of police officers and Magistrates have brought an overdue aspect of control and judicial responsibility. Although a specific situation is what led to this judgment as per the circumstances of Section 498A IPC, over time, these principles have been later applied universally to all the crimes with lesser punishment culminating to seven years, the same is affirmed in the case of Satender Kumar Antil as well.
FAQs
What is Arnesh Kumar judgment famous about?
The Arnesh Kumar case is a very well-known case on how the mandatory guidelines issued to the police officer and Magistrates should be non-arbitrary, especially in cases in which the maximum sentence is less than three to seven years imprisonment. It was particularly intended to reduce abuses that Section 498A IPC (cruelty by husband or relatives) was subjected to.
Which were the main legal provisions which were considered in this case?
The case mainly involved Section 498A of Indian Penal Code, Section 4 of dowry prohibition Act and many other sections of the Code of Criminal Procedure (CrPC) especially 41 (When police may arrest without warrant) and 41A (Notice of appearance before police officer).
Which are the main Arnesh Kumar Guidelines, on police?
The police officers are advised against automatic arrests. Under Section 41 CrPC, they have to put down in writing the reasons of arrest or non-arrest reasons prepared on a checklist, thus showing the necessity of the arrest (e.g., that proper investigation may be done, to prevent further crime, or to prevent destruction of evidence). When arrest is not made, then a Section 41A CrPC notice should be put on the accused.
What are the duties of a Magistrate in the guidelines?
The reasons of arrest should be recorded, and magistrates are obliged to question the police report. Before endorsing judicial remand, they have to be satisfied on the necessity of detention and that should not be a mechanical decision.
What does it do when police or magistrates do not abide by the guidelines?
Police officers who resist these orders are open to departmental proceeding as they can be subjected to contempt of court proceedings. The magistrates are answerable to the High Court in respect of any departmental action when they grant detention without signing reasons to satisfy them.
